Opinion
No. 102517/07.
2010-07-12
Michael DELGROSSO, as Executor of the Estate of Jean Delgrosso, and Michael Delgrosso, Individually, Plaintiffs, v. STATEN ISLAND'S MEDICAL GROUP, Kyung Sook Yoo, M.D., and Aruna Pulijaal, M.D., Defendants.
PHILIP G. MINARDO, J.
Upon the foregoing papers, the motion for summary judgment (Motion No. 3827) by defendant Kyung Sook Yoo, M.D. is denied; as are the cross motions (Motion Nos. 3920 and 4024) by defendants Staten Island's Medical Group (hereafter “SIMG”) and Aruna Pulijaal, M.D., respectively. However, that portion of the cross motion (Motion No. 3920) by defendant SIMG seeking the dismissal of plaintiff's second cause of action, sounding in the failure to obtain an informed consent, is granted as unopposed.
This is an action sounding in medical malpractice. The decedent, Jean Delgrosso, a 70 year old woman, had been a patient of SIMG since 1995. It is undisputed that on December 27, 2005, she presented to SIMG's Dr. Yoo complaining of shortness of breath and a dry cough. Dr. Yoo diagnosed “new onset atrial fibrillation and congestive heart failure”, and arranged for the patient to be transported directly to St. Vincent's Hospital, where she was treated for three days and released on December 30, 2005. On January 17, 2000, the decedent again presented to Dr. Yoo, this time complaining of upper back pain. Dr. Yoo noted that plaintiff denied coughing or a fever ( see Plaintiff's Exhibit “B”, p 91), and determined that her vital signs were all normal. As a result, he advised plaintiff to use a heating pad, take Tylenol and referred her to SIMG cardiologist Dr. Pulijaal for a follow-up appointment. On January 20, 2005, the decedent reported to Dr. Pulijaal for her cardiology consultation, and according to the cross motion of SIMG, “plaintiff decedent presented complaining of fatigue and lower back pain”. Dr. Pulijaal ordered blood work and referred plaintiff for a follow-up examination with Dr. Yoo. On January 21, 2006, at 12:20 a.m., Mrs. Delgrosso was taken by ambulance to St. Vincent's Hospital with a chief complaint of back pain and pain radiating from her chest to her back ( see Plaintiff's Exhibit “F”). Her admission note in the ICU indicates that the patient was lethargic, pale and suffering from chest pain. Repeated chest x-rays revealed bilateral infiltrates, whereupon an endotracheal tube was inserted ( see Plaintiff's Exhibit “F”). According to hospital records, Ms. Delgrosso was diagnosed with, among other things, legionella pneumonia ( see Plaintiffs' Exhibit “F”, p 47). She remained intubated until her death on February 18, 2006.
The requisite elements of proof in a medical malpractice action are a deviation or departure from accepted practice and evidence that such departure was a proximate cause of injury or damage” (Ramsay v. Good Samaritan Hosp., 24 AD3d 645, 646;see Thompson v. Orner, 36 AD3d 791). “In a medical malpractice action, the party moving for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law by showing the absence of a triable issue of fact as to whether [the] defendant physician was negligent” (Taylor v. Nyack Hospital, 18 AD3d 537, 537 citing Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324). Thus, a defendant doctor or hospital moving for summary judgment has “the initial burden of establishing the absence of any departure from good and accepted medical malpractice or that the plaintiff was injured thereby” (Chance v. Felder, 33 AD3d 645, 645 quoting Williams v. Sahay, 12 AD3d 366, 368).
Here, in support of their motions to dismiss, defendants have each submitted the expert affirmation of Peter Heffer, M.D., a physician Board Certified in internal medicine with a sub-certification in cardiovascular disease. With respect to Dr. Yoo and SIMG, the defendants' expert satisfied the initial burden of establishing the absence of any departure from good and accepted medical practice or that the deceased was not injured thereby ( see Flanagan v. Catskill Regional Med. Ctr., 65 AD3d 563). More particularly, Dr. Heffer opines that Dr. Yoo's treatment of Ms. Delgrosso did not deviate from accepted standards of care, and that said doctor did not do or fail to do anything which proximately caused any injury to the decedent. Continuing, Dr. Heffer, states that Dr. Yoo's diagnosis and treatment on December 27, 2005, as well as his recommendation that the decedent immediately be sent to the hospital was correct and in conformity with accepted medical standards. Dr. Heffer also opines that the treatment rendered by Dr. Yoo on January 17,2006 was appropriate relative to the decedent's cardiac history, her complaint of back pain and Dr. Yoo's findings based on his physical examination. Finally, Dr. Heffer concludes that “there is nothing in the records of this case that suggest [that] Mrs. Delgrosso should have been evaluated for pneumonia by Dr. Yoo on January 17, 2006 despite the fact that she was diagnosed with pneumonia four days later” ( see Dr. Yoo's Exhibit “E”).
With respect to Dr. Pulijaal, however, the Court must note that Dr. Heffer's affirmation in support of said cross motion does not address Dr. Pulijaal's care and treatment of the decedent relative to any potential liability on his part. Accordingly, as to Dr. Pulijaal, defendant's expert failed to meet his initial burden of proof in support of summary judgment, and the court need not address the sufficiency of plaintiffs' opposing papers ( see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853). As for the additional affirmation of Dr. Monty Bodenheimer annexed to the reply affirmations of SIMG and Dr. Pulijaal, as they were improperly submitted for the first time in defendants' reply papers without any reasonable justification, they need not be considered in determining whether or not Dr Pulijaal demonstrated a prima facie entitlement to judgment as a matter of law ( see GJF Constr. Corp. v. Cosmopolitan Decorating Co. Inc., 35 AD3d 535;Adler v. Suffolk County Water Auth., 306 A.D.2d 229).
In opposition, plaintiffs have annexed the redacted affirmation of a physician board certified in internal medicine, emergency medicine and endocrinology/metabolism ( see Plaintiffs' Exhibit “A”). This affirmation states that Dr. Yoo departed from good and accepted standards of care on January 17, 2006 when he failed, among other things, to order a chest x-ray of the decedent, take an objective temperature reading, measure her oxygen saturation level, and include pneumonia as a differential diagnosis. Plaintiffs' expert adds that the decedent was at an increased risk of developing infection because of her “... weakened state, prior hospitalization, and diabetes mellitus”. With regards to the examination by Dr. Pulijaal on January 20, 2006, it is stated that “in the face of Mrs. Delgrosso's risk for an infection and complaints of shortness of breath, fatigue and back pain, Dr. Pulijaal's “negligent failure to consider pneumonia as part of the differential diagnosis and to order a chest x-ray to rule it out was a departure from good and accepted medical practice” ( id. at Exhibit “A”). It was also this expert's opinion that these departures by Drs. Yoo and Pulijaal were each substantial factors in delaying the treatment of Mrs. Delgrosso's pneumonia, and that by the time the patient had reached the emergency room on January 21,2006, she had already developed serious complications from her untreated pneumonia, which could have been prevented had she been diagnosed and treated earlier.
Even assuming that defendants at bar had met their prima facie burden by adducing expert opinion evidence that they did not deviate from accepted standards of care in their treatment of the deceased, the affirmation of plaintiffs' expert was plainly sufficient to establish the existence of triable issues of fact as to whether, e .g., defendants were negligent in failing to timely diagnose the pneumonia which caused or led to her death.
Summary judgment may not be awarded to either party in a medical malpractice action where the parties adduce the conflicting opinions of medical experts, thereby presenting a question of credibility requiring a resolution by a jury ( see Barbuto v. Winthrop Univ. Hosp., 305 A.D.2d 623, 624;Halkias v. Otolaryngology–Facial Plastic Surgery Assocs., P.C., 282 A.D.2d 650).
Finally, contrary to defendants' contentions, the affidavit of plaintiffs' expert was neither so conclusory, speculative or without a basis in the record as to render it inadmissible ( see Erbstein v.. Savasatit, 274 A.D.2d 445, 446;see also Dandrea v. Hertz, 23 AD3d 332, 333). Rather, “[a]ny purported shortcomings in the affidavit went merely to the weight of the opinion” (Erbstein v. Savasatit, 274 A.D.2d at 446).
Accordingly, it is hereby
ORDERED, that the motion and cross motions for summary judgment are denied except to the extent hereinafter indicated, and it is further
ORDERED, that so much of the cross motion of Staten Island's Medical Center Group as seeks dismissal of the cause of action against it sounding in lack of informed consent is granted without opposition; and it is further
ORDERED, that said cause of action is hereby severed and dismissed; and it is further
ORDERED, that the Clerk enter judgment accordingly.